Criminal Law

By Peter Woodhouse


NSW jails are a COVID tinderbox and may now have the spark!

Since the start of the pandemic in early 2020, authorities, including those in Australia, have accepted that an outbreak of COVID-19 in the jail environment could have catastrophic consequences for the prison population and for the staff that supervise them, care for them, and otherwise contribute to the day-to-day running of a prison.

The reasoning behind the concern is logical.  The very nature of the prison system involves hundreds of people in close confines, often with little ventilation and pretty ordinary levels of cleanliness and hygiene.  Also, the jail population is being added to from the community on a daily basis as people are arrested and remanded in custody or moved from jail to jail.  A massive COVID outbreak is a disaster waiting to happen in NSW jails, particularly as the virus continues to ravage Sydney.

As of March 2021, there were about 42,000 prisoners in the NSW prison system.  Of those, almost 13,000 (30%) identified as Aboriginal and Torres Strait Islander, a section of the community the Government accepts are at greater risk from COVID-19.  About half of all reception inmates and more than one third of sentenced prisoners suffer from some sort of mental illness – another factor that is accepted as placing people at higher risk from COVID.

Given this very considerable risk to the health of many thousands of citizens, you would expect the NSW government to have prioritised vaccination of inmates to avoid the catastrophic consequences of an outbreak amongst the state’s prison population and the potentially overwhelming problem it would create for the state’s already stretched medical resources. Not so.

As of August 27, only 21% of the state’s prisoners had been vaccinated, compared to 35% of the state’s general population at the same date.  It seems that prisoners have been forgotten in Glady’s great vaccine push.  It is not known how many Corrective Services staff or other jail workers have been vaccinated.  The Government has refused to release the data.

There are now more than 100 people affected with COVID-19 in NSW jails.  Of those, there are at least 77 cases in Parklea prison alone.  There are about 42 cases in Silverwater, some of them having been moved from Parklea.  9 staff at Bathurst prison have been infected.  Whilst alarming, the numbers may well be considerably higher.  The figures need to be viewed with some degree of scepticism given NSW Corrective Services and the private jail operators (Parklea is a private jail) tend to be secretive in relation to any sensitive information and you would expect the quality of the testing regime for COVID-19 in NSW jails to be in line with the quality of medical care provided generally to inmates – not good.

At least the Courts appear to have been more proactive in responding to the threat of COVID to the prison community.  The Supreme Courts of various jurisdictions in Australia, including the NSW Supreme Court and Court of Criminal Appeal, have recognised the risk that COVID-19 poses to inmates as well as the more onerous conditions inmates have been subjected to during the pandemic.  The pandemic has been used to assist a number of vulnerable people to either secure bail or avoid a full-time custodial sentence.

The NSW prison system has other powers up their sleeve and they are copping criticism for not utilising them.  In 2020, the NSW Government passed emergency laws giving Corrective Services the power to release low-risk prisoners who met stringent criteria.   Advocacy groups have called on the Acting Commissioner of Corrective Services to exercise that power in order to reduce the risk of exposure.  It is understood that up to 1000 inmates could be eligible for release.  According to the Acting Commissioner, that’s not going to happen.  One has to question why they wouldn’t immediately implement a tool to reduce total prison population by about 7%.  Perhaps the Government is scared of backlash from the talk-back radio faithful.

The old saying goes: “there are no votes in jails” and that’s sadly true.  But there are particularly vulnerable people in there who need a greater degree of protection from COVID-19, and it is up to the NSW Government to ensure it is provided to them.